United States v. McSurely, 24812

• Decision Date: 20 December 1972
• Docket Number: 24813.,No. 24812,24812
• Citation: 473 F.2d 1178
• Parties: UNITED STATES of America, v. Alan McSURELY, Appellant. UNITED STATES of America, v. Margaret McSURELY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 1178 (1972)

UNITED STATES of America, v. Alan McSURELY, Appellant.

UNITED STATES of America, v. Margaret McSURELY, Appellant.

Nos. 24812, 24813.

United States Court of Appeals, District of Columbia Circuit.

Argued January 21, 1972.

Decided December 20, 1972.

Mr. Morton Stavis, Newark, N. J., with whom Miss Nancy Stearns, Newark, N. J. (both appointed by this court), was on the brief, for appellants. Mr. Philip J. Hirschkop, Alexandria, Va., was also on the brief for appellants.

Messrs. John E. Drury, III, and Stephen W. Grafman, Asst. U. S. Attys., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before TAMM and WILKEY, Circuit Judges, and MATTHEWS,^* U. S. Senior District Judge for the District of Columbia.

MATTHEWS, Senior District Judge:

On June 26, 1970, before a jury in the United States District Court for the District of Columbia, Alan and Margaret McSurely (husband and wife), the appellants herein, were each found guilty of two counts of contempt of Congress.¹ Imprisonment terms were imposed upon them. These convictions provide the basis for their appeals.

The alleged contempts of which appellants were convicted occurred before the Permanent Subcommittee on Investigations of the United States Senate Committee on Government Operation (hereinafter "the Subcommittee").² Subpoenas directing the appellants to testify before the Subcommittee, and to bring with them and produce certain records³ were issued by the Subcommittee Chairman, Senator John L. McClellan of Arkansas. Appellants appeared before the Subcommittee on March 4, 1969, but refused to comply with the Chairman's demand for production of these documents. Chairman McClellan then advised the appellants that the subpoenas would remain in full force and effect and that appellants were ordered and directed to comply with the subpoenas by noon, Friday, March 7. Neither appellant appeared at any time after this March 4 hearing, nor were the subpoenaed documents produced as directed by the Chairman.

Subsequently, on March 24, 1969, the Subcommittee voted to seek contempt citations against appellants. The full Committee presented the matter to the Senate by resolution. This resolution was passed by the Senate on May 5, 1969,⁴ and certified to the United States Attorney for the District of Columbia to proceed against appellants for their contempts. Indictments followed, and appellants were tried and convicted on June 26, 1970. Their appeals have been consolidated.

This is yet another stage in a long and complex siege of litigation which began in Kentucky in August of 1967. From the time the Kentucky officials first seized their papers and personal property, appellants have protested the use thereof in every official action taken against them, asserting their Fourth Amendment rights and resisting what they believed to be official lawlessness. For more than three years the courts have had occasion to pass upon their claims, and appellants have been consistently sustained until their convictions for contempt (the subject of this appeal).

Appellants base their appeal on a variety of reasons and reasoning. But the thrust of their appeal is upon the basic constitutional issue of unlawful search and seizure, not only by the Kentucky officials, but later by a United States Senate Subcommittee. It is their position that their refusal to comply with the Subcommittee subpoenas cannot support contempt convictions when the subpoenas themselves were based upon an unauthorized inspection by the Subcommittee investigator of documents which had been seized by state officials in Kentucky in violation of the Fourth Amendment and under an unconstitutional statute.^4a

I FACTUAL BACKGROUND

Alan and Margaret McSurely were field organizers for Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely was also a field organizer for the National Conference of New Politics and had distributed literature of Vietnam Summer, both unincorporated associations. According to the McSurelys, their official duties were to investigate the socio-eco-political milieu of Pike County, to inform the people of their rights, and to help local citizens organize to overcome their problems.

The search and seizure challenged here was initiated under a section of the sedition statute of Kentucky, which reads:

"KRS 432.040—Any person who by word or writing advocates, suggests or teaches the duty, necessity, propriety or expediency of criminal syndicalism or sedition, or who prints, publishes, edits, issues or knowingly circulates, sells, distributes, publicly displays or has in his possession for the purpose of publication or circulation any written or printed matter in any form advocating, suggesting or teaching criminal syndicalism or sedition, or who organizes or helps to organize, or becomes a member of or voluntarily assembles with any society or assemblage of persons that teaches, advocates or suggests the doctrine of criminal syndicalism or sedition shall be confined in the penitentiary for not more than twenty-one years, or fined not more than ten thousand dollars, or both."

On August 11, 1967, acting under this statute and pursuant to an affidavit, a Pike County Judge issued a search warrant for the premises occupied by appellant Alan McSurely and a warrant for his arrest. That same night officials of Pike County and their deputies conducted a search of the McSurely residence; they seized and impounded 564 loose books, twenty-six posters, twenty-two boxes of books, pamphlets, and other private and published documents found in their home. "They also impounded a suitcase of clothes and several personal items which were caught up in the whirlwind of the search."⁵ Both Alan and Margaret McSurely were arrested and charged with violation of the sedition statute.⁶

Following their arrest the McSurelys filed a complaint in the United States District Court for the Eastern District of Kentucky, challenging the constitutionality of the Kentucky sedition statute and requesting that the matter be heard by a three-judge court pursuant to 28 U.S.C. §§ 2281-84. On September 1, 1967, a three-judge district court was convened.

On September 11, the Grand Jury of Pike County returned an indictment against appellants charging them with seditious activities against the Commonwealth in violation of KRS 432.040. However on September 14, 1967, the three-judge court entered an order, one judge dissenting, declaring the Kentucky sedition statute unconstitutional and permanently enjoining the Commonwealth of Kentucky and the Pike Circuit Court from proceeding further with the prosecution of the McSurelys.⁷

In its order the court directed the Commonwealth Attorney for Pike County, one Ratliff, to continue to hold in safekeeping all materials seized from the McSurelys until final disposition of the case by appeal or otherwise. No appeal was ever filed.

Following the above court order, the Assistant Counsel for the aforesaid Senate Subcommittee telephoned Commonwealth Attorney Ratliff and inquired about the seized materials belonging to the McSurelys. Prior thereto Ratliff had publicly stated that he intended to make the seized materials available to Congressional committees. As a result of this telephone conversation between the Assistant Counsel and Ratliff, a Senate Subcommittee investigator went to Pikeville on several occasions in October, 1967 (prior to the expiration of the time for appeal from the judgment of the three-judge court), and visited Ratliff, inspected the seized materials, made notes therefrom, and was provided copies of 234 documents. Further, the investigator was allowed to take these copies with him to the Subcommittee's offices in Washington, D. C. At no time was there any attempt to contact the McSurelys, their counsel, or seek formal approval from the court permitting the investigator access to these materials.⁸ Also, it is stipulated that the Subcommittee investigator was not only aware of the three-judge court order of September 14, but he, in fact, examined the file of the case on October 9, and requested the Clerk to mail a copy of said order and the Inventory of seized materials to him at his Washington office.⁹

Upon the investigator's return to Washington with the copies of appellants' documents, Senator McClellan, Subcommittee Chairman, determined that certain of the books, records, documents, correspondence and other papers belonging to appellants and in the possession of Commonwealth Attorney Ratliff would be of value to the Subcommittee investigation of the riots occurring in Nashville, Tennessee, in April, 1967. The contested subpoenas issued by the Subcommittee to the McSurelys were in fact the product of this inspection and search of the documents by the Subcommittee's investigator.¹⁰ The initial subpoenas were signed by Chairman McClellan on October 16, 1967, served upon Ratliff on October 17, 1967, and upon appellants on October 19, 1967—the latter date being five days after the expiration of the time permitted by law for the Commonwealth to appeal the three-judge court order of September 14, 1967.

On the day appellants received the subpoenas, they filed a motion seeking a temporary restraining order to prohibit the Commonwealth Attorney from releasing the subpoenaed materials to the Subcommittee. Additionally, they filed a separate motion seeking an order directing the Commonwealth Attorney to return the seized materials. Between October 1967, and July 1968, there was substantial litigation involving the disposition of these documents, culminating in a decision rendered by the Sixth Circuit Court of Appeals.¹¹ The Sixth Circuit ruled that the District Court for the Eastern District of Kentucky erred in refusing to return to appellants their documents which were seized in aid of a prosecution under an unconstitutional statute,...